Judicial review - Standing (locus standi)

Learning Outcomes

This article outlines the concept of standing (or locus standi) in the context of judicial review proceedings. It explains the requirements that an applicant must satisfy to demonstrate they have the right to bring a claim. For the SQE1 assessment, you need to understand the test for 'sufficient interest' under the Senior Courts Act 1981, the distinct 'victim' test under the Human Rights Act 1998, and how these tests apply to different types of applicants, such as individuals and pressure groups. Your knowledge will enable you to identify whether a potential claimant meets the necessary threshold to initiate judicial review proceedings in SQE1 scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the procedural requirements for initiating a judicial review claim, including the rules on standing. You will likely need to apply these rules to determine if a claimant has the necessary interest to bring a challenge against a public body's decision or action.

As you work through this article, focus your revision on:

• The meaning and purpose of standing (locus standi) in judicial review.
• The statutory test of 'sufficient interest' under s.31(3) Senior Courts Act 1981.
• How the courts have interpreted 'sufficient interest', particularly in relation to individuals and groups (e.g., IRC v National Federation of Self-Employed, ex p World Development Movement).
• The distinct 'victim' test for standing under s.7 Human Rights Act 1998.
• The requirement that the body being challenged must be exercising a public function.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the primary statutory test for standing in judicial review proceedings (excluding human rights claims)?
2. Can a pressure group ever have standing to bring a judicial review claim?
3. What is the test for standing under the Human Rights Act 1998?
4. True or false? The court decides whether a claimant has standing at the final hearing stage, after considering all the evidence.

Introduction

Judicial review is the process by which courts examine the lawfulness of decisions or actions taken by public bodies. However, not everyone can bring a claim for judicial review. The legal system imposes rules to ensure that only those with a legitimate connection to the matter can challenge a public body's decision. This requirement is known as 'standing' or, traditionally, locus standi.

Standing acts as a preliminary hurdle. It ensures that the courts are not overwhelmed with claims brought by individuals or groups who lack a genuine connection to the issue or decision being challenged. It filters out busybodies or those with only a general grievance, allowing the court to focus on cases where a specific interest is affected.

The rules on standing differ slightly depending on whether the claim involves an alleged breach of human rights under the Human Rights Act 1998 (HRA 1998) or relies on other public law grounds.

Standing under the Senior Courts Act 1981

The primary test for standing in judicial review (outside of HRA 1998 claims) is set out in s.31(3) of the Senior Courts Act 1981 (SCA 1981).

Key Term: Standing The legal right or eligibility of a person or organisation to bring a claim before a court. In judicial review, it refers to the requirement that the claimant has a sufficient connection to the matter being challenged.

Section 31(3) SCA 1981 states that the court shall not grant permission to apply for judicial review unless it considers that the applicant has a 'sufficient interest' in the matter to which the application relates.

Key Term: Sufficient Interest The threshold requirement under s.31(3) Senior Courts Act 1981 that a claimant must meet to demonstrate they have standing to bring a judicial review claim. The claimant must show a connection to the decision or action being challenged that is greater than that of an ordinary member of the public.

Interpreting 'Sufficient Interest'

The term 'sufficient interest' is not defined in the statute, and its meaning has been developed through case law. The courts generally adopt a flexible approach.

Individuals Directly Affected

Individuals whose personal rights or interests are directly and adversely affected by a decision will usually have no difficulty establishing sufficient interest. For example, a person refused a licence necessary for their business, or a resident whose property value is significantly impacted by a planning decision, would likely have standing.

Groups and Public Interest Challenges

The position is more complex for groups (like charities or pressure groups) or individuals who are not directly affected but wish to challenge a decision on public interest grounds. The courts have moved away from a very restrictive approach.

In R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (often called the Fleet Street Casuals case), the House of Lords indicated that standing should not be treated as a separate preliminary issue decided in isolation. Instead, it should be considered in the context of the legal and factual merits of the case. A claimant might appear to have sufficient interest at the permission stage, but the court might later decide, after hearing the full arguments, that their interest was not sufficient given the lack of substance in their claim.

The courts recognise that sometimes groups play a key role in upholding the rule of law by challenging unlawful government action, especially where no single individual might have the resources or incentive to do so. In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386, the court granted standing to a pressure group challenging the lawfulness of government funding for the Pergau Dam project in Malaysia. Key factors considered by the court in determining sufficient interest for such groups include:

• The importance of the legal point being raised.
• The likely absence of any other challenger.
• The nature of the alleged breach of duty.
• The specialist knowledge and role of the group (e.g., are they a respected body with a genuine interest in the area?).

Worked Example 1.1

A local council grants planning permission for a large supermarket on the edge of town. 'Green Town', a local environmental group known for campaigning on planning issues, believes the council failed to follow the correct environmental impact assessment procedures. No individual resident has yet challenged the decision.

Does Green Town have sufficient interest to apply for judicial review?

Answer: Green Town is not directly affected in the same way as a nearby resident might be. However, applying the principles from ex p World Development Movement, the court would consider factors such as:

• The importance of ensuring correct environmental procedures are followed (public interest).
• The potential absence of an individual challenger (residents might lack resources or awareness).
• Green Town's established role and specialist knowledge in local environmental matters.
• The nature of the alleged failure (a potential breach of statutory procedure).

Given these factors, particularly Green Town's established role and the public interest element, it is likely the court would find Green Town has sufficient interest to bring the claim.

Exam Warning

Do not assume that only directly affected individuals have standing. While direct impact is the clearest route, the courts permit public interest challenges by responsible groups in appropriate circumstances. Focus on the connection between the claimant and the issue, and the importance of the matter raised.

Standing under the Human Rights Act 1998

Where a claimant alleges that a public authority has acted unlawfully in a way which is incompatible with a right under the European Convention on Human Rights (ECHR), as incorporated by the HRA 1998, the test for standing is different and stricter.

Section 7(1) HRA 1998 states that a person may bring proceedings against the authority only if they are (or would be) a 'victim' of the unlawful act.

Key Term: Victim (HRA 1998) The test for standing under s.7 HRA 1998. A claimant must be directly and personally affected by the alleged breach of a Convention right to qualify as a victim.

This 'victim' test derives directly from Article 34 of the ECHR, which governs applications to the European Court of Human Rights. It requires the claimant to demonstrate that they have been personally and directly affected by the alleged breach.

This means that pressure groups or public interest bodies generally cannot bring claims under the HRA 1998 purely on behalf of the public or a section of the public, unless the group itself is directly affected (which is rare).

Worked Example 1.2

A government department implements a new policy requiring all employees in a certain sector to undergo regular surveillance, including monitoring of emails. 'Liberty Watch', a human rights campaign group, believes this policy breaches the employees' right to privacy under Article 8 ECHR.

Can Liberty Watch bring a claim under the HRA 1998 challenging the policy?

Answer: No. Liberty Watch itself is not having its privacy rights breached by the surveillance policy; the employees are. Liberty Watch is not 'directly and personally affected' and therefore does not meet the 'victim' test under s.7 HRA 1998. Only the affected employees (or perhaps a trade union representing them) would have standing to bring an HRA claim. Liberty Watch might, however, be able to bring a traditional judicial review claim if it could demonstrate sufficient interest under the SCA 1981 test, perhaps arguing the policy was unlawful on grounds other than a direct HRA breach (e.g., irrationality or illegality if the policy went beyond the powers granted by statute), although its standing might still be scrutinised.

Revision Tip

Remember the two distinct tests for standing. For general public law challenges, it's the 'sufficient interest' test (SCA 1981). For claims specifically alleging a breach of Convention rights, it's the stricter 'victim' test (HRA 1998). Identify which type of claim is being made in a scenario.

Other Procedural Hurdles

Standing is assessed at the permission stage of judicial review. Even if a claimant has standing, they must also show:

• The claim is against a public body exercising a public function. Purely private law matters cannot be judicially reviewed.
• The claim has been brought promptly and within the time limit (generally within 3 months).
• Alternative remedies (like statutory appeals) have been exhausted where appropriate.
• There are no ouster clauses validly preventing judicial review.

These requirements ensure that judicial review is used appropriately as a remedy of last resort for specific public law grievances.

Key Point Checklist

This article has covered the following key knowledge points:

• Standing (locus standi) is the legal right to bring a judicial review claim.
• The main test for standing is 'sufficient interest' under s.31(3) SCA 1981.
• Sufficient interest requires a claimant to have a connection to the matter greater than the general public.
• Courts interpret 'sufficient interest' flexibly, considering the merits and public interest.
• Pressure groups may have standing in certain public interest cases (ex p World Development Movement).
• For claims under the HRA 1998, the stricter 'victim' test applies (s.7 HRA 1998).
• A 'victim' must be directly and personally affected by the alleged breach of a Convention right.
• Standing is a preliminary requirement considered at the permission stage.

Key Terms and Concepts

• Standing
• Sufficient Interest
• Victim (HRA 1998)